Exhibit 10.16
PERC PILOT PROGRAM AGREEMENT
AGREEMENT (the "Agreement") made as of February 25, 2000 (the
"Effective Date") by and among Eli Lilly and Company, an Indiana corporation
with offices at Lilly Corporate Center, Indianapolis, Indiana 46285 ("Lilly"),
Mediconsult.com, Limited., a Bermuda corporation with offices at Jardine House,
4th Floor, 33-35 Reid Street, Hamilton, Bermuda HM 12 ("Mediconsult").
WHEREAS, Lilly is a pharmaceutical company with certain products among
its product line targeted to patients suffering from diabetes and depression;
WHEREAS, Mediconsult is the publisher of a web site,
www.mediconsult.com, which is primarily devoted to the provision of patient
education materials;
WHEREAS, Mediconsult is the publisher of a web site, www.pol.com,
which is a portal devoted and targeted to the physician community;
WHEREAS, the parties wish to mutually develop and pilot a Patient
Education, Resource and Compliance ("PERC") System in the areas of diabetes and
depression;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Lilly and Mediconsult (each a "Party", and collectively, the "Parties")
hereby agree as follows:
1. Definitions. Unless otherwise provided herein or in an amendment hereto,
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capitalized terms shall have the following meanings:
1.1. Applicable Regulations. "Applicable Regulations" shall mean any
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federal, state or local law, rule, regulation, order decree and other
ruling regarding the advertisement, sale, purchase, order,
recommendation or distribution of drugs (as that term is defined in 21
U.S.C. 321(g)(1) or any item reimbursed by Medicare or Medicaid or
other federal or state health care program), or which is otherwise
applicable to the business of Lilly, or Mediconsult, as well as, the
business relationships by and among pharmaceutical companies, health
care related entities, and health care providers, including, without
limitation, compliance with the regulations proposed and/or promulgated
under Section 264 of the Health Insurance Portability and
Accountability Act of 1996 (Public Law 104-191).
1.2. Broadband Access. "Broadband Access" shall mean a connection to the
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Internet with throughput speeds which are no less than the throughput
speeds provided by a full ISDN line.
1.3. Clinical Rules. "Clinical Rules" shall mean those clinical rules and
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compliance algorithms designed to facilitate well-timed, effective
patient education messaging and agreed to by the parties.
1.4. Deliverables. "Deliverables" shall mean the PERC System and the
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Websites.
1.5. Depression. "Depression" shall mean the medical condition generally
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indicated by or psychotic disorder commonly referred to as depression.
1.6. Diabetes. "Diabetes" shall mean the medical condition generally
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indicated by a variable disorder of Carbohydrate Metabolism caused by
an inadequate secretion or utilization of insulin.
1.7. Enrolled Patient. "Enrolled Patient" shall mean, with respect to
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patients enrolled in the Pilot Program, the on-line registration by the
patient on the PERC System through the patient visiting the PERC System
registration site or the registration of the patient by the physician
or physician's staff by sending an email to Mediconsult for the purpose
of enrolling the patient in the PERC System.
1.8. Enrolled Physician. "Enrolled Physician" shall mean a physician who
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agrees to and executes the Consulting Agreement.
1.9. Intellectual Capital. "Intellectual Capital" shall mean any software,
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computer programming scripts, web pages, databases, data elements,
graphics, trademarks, or other written materials (including materials
in electronic format) which are produced or developed in conjunction
with the services and products to be delivered by Mediconsult pursuant
this Agreement.
1.10. Lilly Materials. "Lilly Materials" shall mean all Intellectual Capital
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provided by Lilly to Mediconsult, including, without limitation, the
patient education materials surrounding patient persistence and
compliance issues developed and owned by Lilly, and all such other
materials as Lilly may from time to time provide to Mediconsult.
1.11. Mediconsult Materials. "Mediconsult Materials" shall mean all
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Intellectual Capital that constitutes core technology related to
Mediconsult's physician/office professional Web site suite of products
currently known as MyDoctor.com and all Intellectual Capital created
before the Effective Date and provided by Mediconsult under this
Agreement other than third party Intellectual Capital.
1.12. PERC System. "PERC System" shall mean a system of integrated Internet
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tools whose purpose is to facilitate better maintenance of patient
therapies via more effective physician-patient communications,
utilizing tools such as "opt-in" patient compliance programs delivered
via structured electronic messaging and other tools. The specifications
for the PERC System shall be mutually agreed to by Mediconsult and
Lilly, with the initial requirements set forth on Schedule 1 attached
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hereto.
1.13. Pilot Program. "Pilot Program" shall mean the implementation and
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deployment of the PERC System as provided for in this Agreement.
1.14. Registered Patient. "Registered Patient" shall mean a patient that
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registers for Virtual Office on-line in the Virtual Office.
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1.15. Virtual Office. "Virtual Office" shall mean the internet based system
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implemented and maintained by Mediconsult for use by patients,
physicians and physician staffs, including the initial mapping of the
site, any functional changes to which must be mutually agreed to by the
parties, as more fully described on Schedule 2.
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1.16. Websites. "Websites" shall mean the Websites on the Internet developed
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by or at the direction of Mediconsult in order to fulfill the
requirements set forth in this Agreement, including, without
limitation, mydoctor.com, mediconsult.com, pol.net, the PERC System and
the Virtual Office.
2. Mediconsult Services. Mediconsult will provide the following services during
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the term and any extensions of this Agreement:
2.1. Develop, deploy and operate two (2) PERC Systems: one in the area of
Diabetes and one in Depression, with timing for the Pilot Program as
set forth in Schedule 3.
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2.2. Use commercially reasonable efforts to gain explicit agreement from Way
Over the Line to provide electronic script writing for all physician
offices enrolled in the Pilot Program to the extent Way Over The Line
is licensed in such jurisdiction and electronic script writing is not
prohibited by law, and for continued service in the event Lilly elects
to exercise the Option set forth in Section 8.2.
2.3. Mediconsult shall enter into a consulting agreement, the form of which
is attached hereto as Exhibit A, with each physician, which will
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require the physician to provide Mediconsult and Lilly with consulting
services regarding the effectiveness of the PERC System and suggested
improvements. Mediconsult shall forward all feedback received from the
physicians to Lilly. In exchange for the consulting services, each
participating physician shall receive for one full year the following
from Mediconsult:
2.3.1 Broadband Access, where such services are commercially
available, for every Physician enrolled in the Pilot Program;
2.3.2 Continuous availability of the Websites as specified in Section
3.3;
2.3.3 Technical support to the participating physician and such
physician's staff in the operation of the PERC System and
enrolling patients in the Pilot Program;
2.3.4 A listing in the mydoctor.com website; and
2.3.5 A wide range of services provided by Mediconsult within the
Virtual Office, including, marketing materials that direct,
educate and motivate patients to enroll in the Pilot Program,
and other services the minimum of which is set forth on Schedule
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3.
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2.4. Enroll 25 physicians in the Pilot Program, divided roughly equally
between the Pilot Programs for Diabetes and Depression.
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2.5. Enroll a minimum of 5 patients per week per physician in the PERC
System Pilot Program during the Testing Period (as set forth in
Schedule 3) and 10 patients per week per physician during the Pilot
Period (as set forth in Schedule 3).
2.6. Provide agreed data intended to measure attitudinal changes,
subjective opinion and shifts in prescription volume utilizing
various software and tools to be mutually agreed to by and between
Mediconsult and Lilly, including initially, the metrics and items set
forth in Schedule 4.
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2.7. Secure the appropriate consents from participating patients to enable
the sharing of patient data with Lilly in compliance with Applicable
Regulations. Develop a privacy policy that is acceptable to Lilly.
2.8. Display a Lilly corporate icon, measuring approximately 134 pixels by
31 pixels (standard with other corporate icons displayed), providing
a clean link to the Lilly Web site (as determined by Lilly) on the
mediconsult.com home page, and other branding as set forth in
Schedule 2A and 2B, and in whatever manner is acceptable to
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physicians.
2.9. Host an ongoing "private sponsored discussion" on www.pol.net in each
of the therapeutic areas of depression and diabetes for use by the
participating physicians in the Pilot Program, Mediconsult and Lilly.
The purpose of the discussions will be for the participants to share
feedback on the pilot program and provide a form of peer support to
participating physicians.
Provide Lilly with all physician and patient statistically aggregated data
collected through the Pilot Programs, and all other data which is permissible
based on appropriate consents and in accordance with Applicable Regulations.
3. Representations and Warranties of Mediconsult.
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3.1. All of the services to be performed hereunder will be rendered in a
manner consistent with professional standards generally applicable to
the industry in which Mediconsult does business using sound,
professional practices and in a competent and professional manner by
knowledgeable, trained and qualified personnel.
3.2. The Deliverables will appear and operate in conformance with the
specification mutually agreed to by Lilly and Mediconsult.
3.3. The Website will be available as follows: (i) all pages of the
Website and Virtual Office, including all servers supporting Website
operations (e.g., servers maintaining links, banner ads, etc.) will
be fully operational, available to, and accessible by, the public
99.0% of the time, 24 hours a day, 7 days a week, measured monthly,
excluding scheduled maintenance with a frequency no more than once
per month for no more than 90 minutes duration with each occurrence
and occurring between the hours of 3 a.m. and 6 a.m. Eastern Standard
Time; and (ii) Response time for the web server for the Website to
send all of the data making up a viewable page onto the Internet will
be no more than 3 seconds 95% of the time, provided, however, that as
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technology improves, response time will decrease and Mediconsult
shall utilize technology that provides response times consistent with
websites considered competitive with the Website. Notwithstanding any
other provision herein, if Mediconsult fails to meet such criteria as
set forth in this Section more than two times in one month for two
consecutive months, then Lilly shall have the right to terminate this
Agreement.
3.4. Mediconsult, nor any entity acting on its behalf or for its benefit,
will not undertake any activity, including visits by persons who are
not genuine users of the Website or other surreptitious means,
designed to artificially inflate any measurement used to set
compensation or assess ROI or other success metric under this
Agreement.
3.5. Mediconsult has full authority to enter into this Agreement.
3.6. All obligations owed to third parties with respect to the activities
contemplated to be undertaken by Mediconsult pursuant to this
Agreement are or will be fully satisfied by Mediconsult, so that
Lilly will not have any obligations with respect thereto.
3.7. Mediconsult is the owner of or otherwise has the right to use and
distribute the Deliverables and any other materials and methodologies
used in connection with providing the services and Deliverables
hereunder.
3.8. Mediconsult will comply with Applicable Regulations.
3.9. The Deliverables shall not infringe upon any third party copyright,
trademark, patent, trade secret or other third-party right.
4. Lilly Services. Lilly will provide the following services during the term
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and any extensions of this Agreement:
4.1. Provide Mediconsult with the Lilly Materials and Clinical Rules.
4.2. Lilly acknowledges and agrees that Lilly's performance of its
obligations under this Agreement and cooperation with Mediconsult are
essential to Mediconsult's ability to incorporate Lilly Materials
into the PERC System in the manner and within the time periods
specified in the Agreement. Each party agrees to cooperate in good
faith and maintain an appropriately high level of effort to meet the
timetable outlined in the Agreement and ensure effective
communication and coordination in all matters requiring the joint
efforts of Lilly and Mediconsult.
5. Representations and Warranties of Lilly.
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5.1. Lilly has full authority to enter into this Agreement;
5.2. Lilly is the owner of or otherwise has the right to use and
distribute the Lilly Materials and Clinical Rules; and
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5.3. The use of the Lilly Materials and Clinical Rules shall not infringe
upon any third party copyright, trademark, patent, trade secret or
other third-party right.
6. Disclaimer of Warranty and Liability Limitations.
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6.1. Limited Warranty. THE WARRANTIES SET FORTH IN SECTIONS 3 AND 5 ARE
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LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY THE RESPECTIVE
PARTIES. THE PARTIES EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE,
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
6.2. Additional Limitations. Neither party will be liable to the other
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party for any indirect, incidental, consequential, punitive or
exemplary damages of any kind whether under this Agreement or
otherwise, including without limitation any loss of profit, business,
revenue, goodwill or anticipated savings. Mediconsult will not be
liable to Lilly for any loss or damage resulting from any defect in
hardware or software originally supplied by any person other than
Mediconsult. Each party's liability for breaches of this Agreement,
except for claims for indemnification pursuant to Article 10, will be
limited to an aggregate amount for all such breaches and claims equal
to $500,000; provided, that no such limitation will apply with
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respect to payment obligations of Lilly as set forth in this
Agreement.
7. Fees. In exchange for the services to be provided hereunder, Lilly agrees
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to pay POL as follows: (i) $1,000,000 upon execution of this Agreement; and
(ii) $500,000, upon and only if Mediconsult Enrolls 25 physicians into the
Pilot Program.
8. Exclusivity and Option.
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8.1. Exclusivity. For the period of time set forth on Schedule Three,
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including the Enrollment, Testing, Pilot and Evaluation Periods
(collectively the "Exclusivity Period") Mediconsult agrees to
exclusively work with Lilly in the development of this Pilot Program
and any PERC System or any similar systems for Diabetes or
Depression.
8.2. Option. Lilly shall have the option to continue the exclusive
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sponsorship and promotion of the PERC Systems on a continuing basis
in the areas of Diabetes and Depression after expiration of the
Exclusivity Period, provided that Lilly indicates in writing prior to
expiration of the Exclusivity Period, its desire to continue its
exclusive sponsorship of the PERC System. Any continuation of Lilly's
sponsorship and promotion of the PERC System will be by a separate
agreement to be mutually agreed to by and among Lilly and Mediconsult
but the fees thereunder will be primarily based upon a performance
metric and will be no more than the lowest price paid by any other
party to Mediconsult (or its related entities providing such
services) for similar services with additional discounts to be
provided as agreed to by the parties. Mediconsult will not speak with
other entities about sponsorship of the PERC System in the areas of
Diabetes and Depression during the Exclusivity Period,
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except that beginning October 1, 2000, Mediconsult may speak with
other entities regarding sponsorship, but may not enter into an
agreement with any such companies unless and until the sooner of
Lilly determining that it does not want to extend its exclusivity, or
the Exclusivity Period expires or otherwise terminates as provided in
this Agreement.
9. Ownership Of Intellectual Capital. All rights, title and interest in and to
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the Intellectual Capital, except for Lilly Materials (owned solely by
Lilly) and Mediconsult Materials (owned solely by Mediconsult) developed
solely for the PERC system (PERC Intellectual Capital) shall be jointly
owned and retained by Lilly and Mediconsult. Furthermore, each party shall
have the right to utilize the PERC Intellectual Capital in any manner
without any obligation of accounting to the other parties for any profits
derived from such use.
10. Indemnification.
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10.1. Mediconsult Indemnification. Mediconsult shall defend, indemnify, and
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hold Lilly harmless from and against any and all claims, losses,
damages, suits, fees, judgments, costs and expenses (including
attorneys' fees) which Lilly may suffer or incur arising out of or in
connection with: (a) arising from or the Websites, PERC System,
Virtual Office, Mediconsult Materials or the operation of Mediconsult
business, (b) injuries to persons (including death) or loss of, or
damage to, property, occasioned by gross negligence, unlawful act, or
willful misconduct of Mediconsult, or of Mediconsult's personnel,
subcontractors, or agents, as well as any claim for payment of
compensation or salary asserted by any employee, agent, or
subcontractor of Mediconsult; and (c) any claim that Lilly's use,
copying, or distribution of the Deliverables or Mediconsult
Materials, or any portion thereof infringes or violates any patent,
copyright, trade secret, trademark, or other third party intellectual
property right. In the event that Lilly is in any way enjoined from
using the Deliverables, or any portion thereof, Mediconsult shall
promptly, at its expense (including, but not limited to the payment
of any royalties occasioned by the following) either: (i) provide to
Lilly non-infringing means of using the Deliverables; (ii) negotiate
and procure for Lilly the right to use the Deliverables without
restriction; or (iii) if neither (i) nor (ii) can be accomplished
within a reasonable time period and at no cost to Lilly, refund to
Lilly all monies paid under this Agreement.
10.2. Lilly Indemnification. Lilly shall defend, indemnify, and hold
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Mediconsult harmless from and against any and all claims, losses,
damages, suits, fees, judgments, costs and expenses (including
attorneys' fees) which Mediconsult may suffer or incur arising out of
or in connection with: (a) Lilly websites, the Lilly Materials, or
the operation of Lilly business, (b) injuries to persons (including
death) or loss of, or damage to, property, occasioned by gross
negligence, unlawful act, or willful misconduct of Lilly, or of
Lilly's personnel, subcontractors, or agents (except to the extent
Mediconsult or its affiliates are agents), as well as any claim for
payment of compensation or salary asserted by any employee, agent, or
subcontractor of Lilly; and (c) expenses (including attorneys' fees)
which Mediconsult may suffer or incur arising out of or in connection
with injuries to persons (including death) or loss of, or damage to,
property, occasioned by negligence, unlawful act, or willful
misconduct of
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Lilly, or of Lilly's personnel, subcontractors, or agents, as well as
any claim for payment of compensation or salary asserted by any
employee, agent, or subcontractor of Lilly.
11. Insurance. MCNS will at all times during the term of this Agreement
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maintain appropriate insurance coverage with responsible carriers. MCNS
shall provide Lilly proof of such coverage within ten (10) days of the
execution of this Agreement.
11.1. MCNS shall maintain workers compensation and employers liability
insurance, general liability insurance coverage that includes
property damage and personal injury components, and errors and
omissions liability coverage. Such insurance coverage, at a minimum,
shall include the following types and amounts:
11.1.1 Workers compensation and employers liability meeting the
statutory minimum in the states in which Services are to be
performed by MCNS employees;
11.1.2 Commercial general liability insurance naming Lilly as an
additional insured including premises and operations coverage
with limits of not less than $5,000,000 per occurrence and
$5,000,000 per incident;
11.1.3 Property damage liability insurance naming Lilly as an
additional insured with limits of not less than $3,000,000 per
occurrence and $3,000,000 per accident; and
11.1.4 Errors and omissions liability insurance, including, without
limitation, coverage for Mediconsult infringing third party
copyrights, naming Lilly as an additional insured with limits
of not less than $5,000,000 per occurrence and $5,000,000 per
incident.
11.2. In the event a policy required by this Agreement is canceled or
reduced to a level below the minimum liability limits prescribed
hereinabove, MCNS shall give Lilly fifteen (15) days prior written
notice of such termination or reduction. In that event, Lilly shall
have the right to terminate this Agreement if MCNS is unable to
secure the necessary coverage within thirty (30) days of such notice.
12. Termination. This Agreement and the License may be terminated as follows:
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12.1. By Mediconsult upon thirty (30) days advance written notice for the
breach by Lilly of any of its obligations under this Agreement if
Lilly has not cured such breach within such notice period.
12.2. By Lilly upon thirty (30) days advance written notice for the breach
by Mediconsult of any of its obligations under this Agreement if
Mediconsult has not cured such breach within such notice period.
12.3. In the event of a termination by Lilly, Mediconsult shall refund to
Lilly all fees paid by Lilly to Mediconsult and for which Lilly has
not received goods or services as set
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forth herein as of the date of the notice of the breach. In the
event of any termination or expiration of this Agreement for any
reason, Mediconsult shall immediately remove all links to Lilly
websites and all advertising and promotional pieces and references to
Lilly on the Website, and further, shall remove all Lilly Material
within 30 days of termination.
12.4. In the event of a termination by Mediconsult, Lilly shall pay to
Mediconsult all fees due and not paid by Lilly to Mediconsult and for
which Lilly has received goods or services as set forth herein as of
the date of the notice of the breach and Lilly shall immediately
remove all links to Mediconsult websites and all advertising and
promotional pieces and references to Mediconsult on the Website, and
further, shall remove all Mediconsult Material within 30 days of
termination.
13. Publicity. Except as expressly provided in this Article 12, Mediconsult
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agrees that it shall not, without prior written consent of Lilly in each
instance, use in advertising, publicity or otherwise the name of Lilly, or
any partner or employee of Lilly, nor any trade name, trademark, trade
device or simulation thereof owned by Lilly, or represent, directly or
indirectly, that any product or any service provided by Mediconsult has
been approved, recommended, certified, or endorsed by Lilly. Mediconsult
and Lilly agree not to advertise any affiliation with each other under this
Agreement and not to publicly reveal the existence of this Agreement or any
of the terms, including, without limitation, pricing and amount of payments
by Lilly (aggregate or singular), of this Agreement, without the prior
written consent of the parties. Lilly acknowledges and agrees that
Mediconsult (a) may be required to file this Agreement as a "material
contract" with the United States Securities and Exchange Commission (the
"SEC'), in which case Mediconsult agrees to request confidential treatment
with respect to such portions of this Agreement as Lilly may reasonably
request, and (b) may include in its filings, reports and discussions with
the SEC, its stockholders and other persons information regarding this
Agreement which is consistent with the disclosure permitted by clause (a)
hereof and information regarding revenues earned under this Agreement as
specified Services are provided. Lilly agrees to consider in good faith any
request by Mediconsult for consent to include in such filings, reports or
discussions other information regarding this Agreement.
14. Reporting/Auditing. Mediconsult will engage an independent third party to
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electronically monitor and record requests for the linked Lilly web page
via the hyperlink on the Website. The third party will report the recorded
information to Mediconsult and Lilly on a monthly basis. The third party
will employ measures to record visits by individual users, rather than
automated or repeated accesses. Lilly will employ measures to create
reports showing the number of unique individual users that make up the
subset of the reported requests for the Lilly web pages. In addition, Lilly
will have the right, at its expense and upon no less than five (5) working
days prior written notice, to perform an audit of Mediconsult's systems,
methodology and processes related to the delivery of the benefits set forth
in this Agreement, with specific emphasis on Mediconsult's security and
change control procedures related to the Websites. Such audit, which may be
conducted by Lilly personnel under obligations of confidentiality or by an
independent auditing firm, will not interfere unreasonably with
Mediconsult's business activities, and will be performed only when Lilly
has received a request from the U.S. Food and Drug Administration (or
agency with similar
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regulatory authority and jurisdiction over Lilly's business), or if Lilly
believes that such an audit is necessary in order to comply with Applicable
Regulations. Lilly will use information received during an audit solely for
the purposes of the Agreement and will otherwise maintain the
confidentiality of such information.
15. Website Content.
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15.1. Lilly shall own all right, title and interest in and to all Lilly
Material. By its provision of the Lilly Material to Mediconsult,
Lilly is providing a limited, non-exclusive, terminable license to
Mediconsult solely for the use of the Lilly Material on the Website,
without modification, until this Agreement expires, or until such
Agreement is terminated in any manner, whichever should first occur.
Mediconsult shall utilize the Lilly Material without modification,
unless Mediconsult first gains the consent of Lilly to any
modifications it desires to make. Mediconsult agrees to notify Lilly
of any significant changes to the content or structure of the
Website prior to the changes being made. Lilly shall have the option
to terminate this Agreement on 5 days notice after any significant
change to the Website or the posting of any content on the Website
that Lilly reasonably determines would adversely affect Lilly, its
reputation or those of its products.
15.2. Mediconsult shall own all right, title and interest in and to all
Mediconsult Material. By its provision of the Mediconsult Material
to Lilly, Mediconsult is providing a limited, non-exclusive,
terminable license to Lilly solely for the use of the Mediconsult
Material on the Website, without modification, until this Agreement
expires, or until such Agreement is terminated in any manner,
whichever should first occur. Lilly shall utilize the Mediconsult
Material without modification, unless Lilly first gains the consent
of Mediconsult to any modifications it desires to make. Lilly agrees
to notify Mediconsult of any significant changes to the content or
structure of the Website prior to the changes being made.
Mediconsult shall have the option to terminate this Agreement on 5
days notice after any significant change to the Website or the
posting of any content on the Website that Mediconsult reasonably
determines would adversely affect Mediconsult, its reputation or
those of its products.
16. Assignment and Delegation. This Agreement will remain personal to each
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party and neither party may assign this Agreement, or assign any of its
rights or delegate any of its obligations hereunder, to any third party
without the prior written consent of the other party; provided that
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Mediconsult may subcontract with other parties to provide the certain
required services hereunder. Any attempted unauthorized assignment by
either party will be null and void and the other party will have the right
to immediately terminate this Agreement in addition to all other rights and
remedies it may obtain under this Agreement. Subject to the foregoing, this
Agreement will bind and inure to the benefit of the parties and their
respective successors and permitted assigns. This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
assigns and not for the benefit of, or enforceable by, any third party. In
addition, Mediconsult may not assign its rights nor delegate its duties
hereunder, nor may such be assumed by any entity, without written consent
of Lilly, by any mechanism for change of control, including, without
limitation, merger, purchase of assets and assumption of liabilities,
acquisition, reorganization, or otherwise, where such change in
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control affects more than a 15% ownership of Mediconsult, and where the
successor or purchaser of control, is a competitor of Lilly's in the
manufacture of pharmaceuticals. Any transaction in contravention of this
Section shall give rise to a right of termination by the other party.
17. Confidentiality, Proprietary Nature of Information. The parties hereto
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acknowledge that all information and documents disclosed by a party, or
which come to the receiving party's attention during the course of its
performance of its obligations under this Agreement, constitute a valuable
asset of and are proprietary to the disclosing party. Therefore, each party
shall keep confidential and not disclose or otherwise make available to any
third party any confidential information, advice or material of any nature
that is provided or made available by the other party, including but not
limited to, any written reports or other data, without the prior written
consent of the other party. This provision shall survive termination of
this Agreement.
This section shall not apply to any information that:
i) is in or comes into the public domain through no breach by
the recipient of the information of its obligations under this Agreement,
ii) is independently developed by the recipient without
reference to otherwise confidential information of the other party,
iii) the recipient acquires from a third party who owes no
obligations of confidence to the other party to this Agreement in respect
thereof, or
iv) was already known to the recipient at the time it received
such information from the other party to this Agreement as shown by the
recipient's prior written records.
If either Mediconsult or Lilly is requested or required by any legal or
investigative process to disclose any information that it is not permitted to
disclose, that party shall provide the other with prompt notice of each such
request and the information requested so that the other party may seek to
prevent disclosure or the entry of protective order. If disclosure is required
and a protective order is not obtained, the party from whom disclosure is
required shall disclose only such information that it is advised by its counsel
is legally required to be disclosed.
18. Dispute Resolution. The following procedure may be utilized by the
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initiation of either party for disputes that may arise under this Agreement.
Any party to this Agreement may notify the other party of the nature of the
dispute with as much detail as possible about the deficient performance of
the other party. Each party will use reasonable efforts to have
representatives of each party who have the authority to settle the dispute
meet within five (5) days of the date of the notification to reach an
agreement about the nature of the deficiency and the corrective action to be
taken by the respective parties. The parties shall within such time produce
a report about the nature of the dispute in detail and submit such report to
their respective management. If the parties are unable to agree on
corrective action, the respective managers to whom the involved parties
report ("Management") shall meet to facilitate an agreement within ten (10)
days of the date of the notification. If Management cannot resolve the
dispute with a written plan of corrective action within five (5) days of
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their initial meeting, or the agreed upon completion dates in the written
plan of corrective action are exceeded, or if a party reasonably determines
that this process will not address the dispute adequately, any party may
then proceed in accordance with its respective rights under this Agreement.
Pending resolution of any dispute, both parties will continue their
performance under this Agreement including, without limitation, the payment
of all non-disputed amounts due to the other party.
19. Independent Contractor. In performing its obligations under this Agreement,
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Mediconsult perform as independent contractors and not as agents or
employees of Lilly. For this reason, the activities in the performance of
their obligations under this Agreement shall be at their own risk and they
shall not be entitled to worker's compensation or other insurance
protection, nor to any other benefits generally provided by Lilly to its
employees. Mediconsult acknowledges its responsibility to withhold and pay
all Federal and state taxes and to obtain all insurance coverage, such as
workers' compensation, employer's liability, and bodily injury and property
damage.
20. Choice of Law. Except for the foregoing arbitration clause, this Agreement
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shall be governed by and construed in accordance with the laws of the State
of Indiana, excluding all choice of law provisions.
21. Entire Agreement. This Agreement, constitutes the entire agreement between
----------------
the parties regarding its subject matter. Any modification of this Agreement
will be effective only if it is in writing and signed by the parties.
22. Waiver. None of the conditions of the Agreement shall be considered waived
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unless such waiver is in writing and signed by the waiving party. No such
waiver shall be a waiver of any past or future default, breach or
modification of any of the conditions of the Agreement unless expressly
stipulated in such waiver.
23. Severability. If any provision in this Agreement is held to be invalid,
------------
void, or unenforceable, the remaining provisions shall nevertheless continue
in full force.
24. Notices. Any written notices to be given hereunder by either party shall be
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deemed effective upon personal delivery or upon mailing the notice to the
party to be served at the address set forth below:
LILLY:
-----
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana 46282
Attn: Director eCommerce
Copy: Information Technology Counsel
Mediconsult:
-----------
Mediconsult.com, Limited
Jardine House, 4th Floor
33-35 Reid Street
12
Hamilton, Bermuda HM 12
Attn: President
Copy:
Mediconsult.com, Inc.
1330 Avenue of the Americas, 17th Floor
New York, NY 10019
Attn: General Counsel
25. Force Majeure. Neither Mediconsult nor Lilly will be liable for delays or
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defaults in furnishing goods or Services hereunder to the extent that such
delays or defaults on the part of Mediconsult or Lilly, as the case may be,
are beyond the control of such party, and may include:
(a) acts of God or of a public enemy;
(b) acts of any governmental authority;
(c) fires, severe weather, floods, earthquakes, natural disasters,
explosions or other catastrophes;
(d) embargoes, epidemics or quarantine restrictions;
(e) shortages of goods, labor strikes, organized slowdowns, or
labor stoppages;
(f) delay directly due to Lilly reporting problems or furnishing
information or materials in an untimely manner.
The effect of any event or condition specified in this Article 25 will be to
suspend Mediconsult's or Lilly's, as the case may be, obligations under this
Agreement to the extent such condition results in the Mediconsult's or Lilly's
inability to perform such obligation. Each such suspension will operate to
extend any grace or cure period applicable to the performance of such obligation
by the amount of time of such suspension. Any timetable (including all
deadlines and milestones) will be adjusted automatically to give appropriate
effect to each occurrence of any such event or condition; provided, however,
that if such delay (other than a delay caused directly by Lilly's untimely
actions) results in a material impact on the Mediconsult Services and such delay
continues for more than one week, then Lilly shall have the right to terminate
this Agreement.
26. Headings. The headings in this Agreement are solely for convenience of
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reference and shall not affect its interpretation.
27. Ambiguous Terms. Any ambiguities in this Agreement will not be strictly
---------------
construed against the drafter of the language concerned but will be
resolved by applying the most reasonable interpretation under the
circumstances, giving full consideration to the intentions of the parties
at the time of contracting. This Agreement will not be construed against
any party by reason of its preparation.
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ELI LILLY AND COMPANY MEDICONSULT.COM, LIMITED
/s/ Mike B. Kinney /s/ Robert Jennings
- ------------------------------------- ---------------------------------------
Signature Signature
Director of Procurement Chief Executive Officer
- ------------------------------------- ---------------------------------------
Printed Name and Title Printed Name and Title
February 25, 2000 February 25, 2000
- ------------------------------------- ---------------------------------------
Date Date
14